Many people have been asking about whether the new MCA applies to citizens. The answer seems pretty straightforward.

(1) Yes, a few parts of the MCA do apply to citizens; and

(2) the MCA is probably unconstitutional in many of its applications to citizens; and

(3) some constitutional applications of the MCA to citizens are deeply troubling.

A U.S. citizen may be an unlawful enemy combatant under section 948a.

Section 948a(1) defines an unlawful enemy combatant as

"(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces; or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Section 948b states that "[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants." So the MCA's procedures apply only to aliens; not to citizens. Nevertheless, Congress has declared that persons falling into the definition in 948a are unlawful enemy combatants whether they are aliens or citizens.

Why does this matter, if the military commission procedures in the MCA don't apply to citizens? The answer is that the government might seek to detain citizens as unlawful enemy combatants using the new definition in section 948a.

Hamdi v. Rumsfeld states that the President had authority to detain enemy combatants according to the laws of war based on a fairly narrow definition of the term "enemy combatant":

for purposes of this case, the "enemy combatant" that [the government] is seeking to detain is an individual who, it alleges, was " 'part of or supporting forces hostile to the United States or coalition partners' " in Afghanistan and who " 'engaged in an armed conflict against the United States' " there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The MCA greatly expands the definition of enemy combatants, because it greatly expands the definition of "unlawful enemy combatants." If the government may detain any enemy combatants, a fortiori it may detain unlawful ones. The new definition is fuzzy: it includes citizens who "materially support" hostilities against the U.S. or whom the DoD says are unlawful enemy combatants.

Hamdi, however, states that citizens have the right under the Due Process Clause to contest their designation as enemy combatants. Because section 948a(1)(ii) purports to make determinations of enemy combatant status conclusive, it is unconstitutional to that extent. Moreover, some applications of "material support" in section 948(1)(i) would violate the Due Process Clause or the First Amendment.

But even putting those cases to one side, the new definition is still troubling: there would be many cases where the new definition is not otherwise unconstitutional but sweeps up people who pose no serious threat to national security. For example, suppose a person knowingly lets an al Qaeda operative stay at their house overnight. That person may be in violation of federal law, but it's hardly clear that the government should have the right to detain such a person indefinitely in a military prison without Bill of Rights protections until the end of the War on Terror, whenever that is. The problem with 948a(1) is that it may place Congress's stamp of approval on a definition of "unlawful enemy combatant" that is far too broad and that allows the government to move a wide swath of citizens outside of the normal procedural protections of the criminal justice system and into a parallel system where the Bill of Rights does not apply.

One last point: Section 7(a) of the MCA strips habeas and federal court jurisdiction with respect to aliens. It does not strip jurisdiction with respect to citizens.

However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo? As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional.

"(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Given that Congress is not setting forth any rule regarding who can or cannot be determined to be an unlawful enemy combatant by the Executive (i.e. an unlawful enemy combatant is whoever the Executive says so), would this provision be a delegation of legislative power from Congress to the Executive? If so, would this delegation be permissible under the U.S. Constitution?

"The citizen [imprisoned as an alien] should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional."

Yes, but how does the citizen get into court to challenge the constitutionality of the MCA? I suppose that a relative of the citizen would have standing -- if he knows where the citizen has "disappeared" to.

Torture is any act by which severe pain, whether physical or psychological, is intentionally inflicted on a person as a means of intimidation, deterrence, revenge, punishment, sadism, information gathering, or to obtain false confessions for propaganda or political purposes. It can be used as an interrogation tactic to extract confessions. Torture is also used as a method of coercion or as a tool to control groups seen as a threat by governments. Throughout history, it has often been used as a method of effecting religious conversion or political “re-education.” Torture is almost universally considered to be an extreme violation of human rights, as stated by the Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention agree not to torture protected persons (enemy civilians and POWs) in armed conflicts, and signatories of the UN Convention Against Torture agree not to intentionally inflict severe pain or suffering on anyone, to obtain information or a confession, to punish them, or to coerce them or a third person.

Professor Balkin:...suppose a person knowingly lets an al Qaeda operative stay at their house overnight. That person may be in violation of federal law, but it's hardly clear that the government should have the right to detain such a person indefinitely in a military prison without Bill of Rights protections until the end of the War on Terror, whenever that is.(emphasis added)

This, sir, is a compelling example of why we must counter the war meme itself if we hope to have any real effect in our opposition to the continued power-grabs of PNAC and the intelligence community. Respectfully, I repeat my plea for you to take up that cause.

The definition of unlawful combatants is not limited to aliens because citizens can also in fact be unlawful enemy combatants fighting for al Qaeda.

This legislation largely leaves unanswered what interrogation we can subject citizen unlawful combatants to for intelligence gathering purposes, but information obtained in such interrogations is unlikely to be admitted a criminal evidence in any court which has jurisdiction to try a citizen unlawful enemy combatant. Only aliens are subject to military commissions an civilian or UCMJ courts use the standard federal rules of evidence.

I don't understand your point about Hamdi. You say that section 948a(1)(ii) violates the Due Process clause because "it purports to make determinations of enemy combatant status conclusive." But the determinations it purports to make conclusive are those of the "Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." All Hamdi reads due process to require is a "meaningful opportunity to contest the factual basis of the detention before a neutral decisionmaker." Obviously, that doesn't have to be an Article III court. Why couldn't it be the CSTR?

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Although this section refers to an individual, I worry about the tribunal applying the definition of enemy combatant to a class of people.

ACB--because the CSRT (which should NOT be confused with a military commission) does not, in fact, provide any semblance of due process. In a CSRT, a prisoner:

--the definition of "enemy combatant" is incredibly broad, including people who never fired a weapon, never knowingly supported the Taliban or Al Qaeda, never encountered US troops, acted under extreme duress, etc. etc. etc.--a prisoner has the burden of proving innocence--all of the evidence against him is classified--he cannot call witnesses or submit documents unless the tribunal decides they are "reasonably available"--he does not get a lawyer--evidence admitted under torture is allowed.

Never before have I been as ashamed and disgusted to be an American as I am today. As we struggle to supposedly spread the ideals of freedom and democracy around the globe it is ironic that the US administration and the Congress, apparently with the support and blessings of many many Americans, are vigorously curtailing those ideals at home.

Katherine, as far as I can tell from reading the bill - someone correct me if I'm wrong - almost all of the characterizations you make are untrue. The accused to get lawyers, there is provision for reasonable discovery and evidence obtained under torture is specifically excluded.

What Bush does when he talks about spreading freedom and democracy is speaking in code. He speaks of exporting our brand of freedom. By that he means his definition of "our" which obviously pertains to the oligarchs with whom he identifies and the authoritarians he admires so much.

The hardest thing I have had to do lately is explain to a Russian friend in St.Petersburg with a group of Russian students listening why it is so difficult to remove a man who a majority of the country did not vote for and who they do not support. The Russians don't understand, nor do the Romanians or other Eastern European people, that the United States is not the great shining light of democracy they have been lead to believe it is. They cannot accept that our electoral system can be broken.

It's kind of a cognitive dissonance thing with them. We are America, that concept stands for something with them that it ceeased to be here at home more than a generation ago.

The clear way around the habeas corpus restriction to aliens is to detain a citizen as an unlawful enemy combatant, an unappeasable designation, and then immediately ship him to a CIA prison abroad, and leave him there indefinitely if that is what is wanted. Bush has acknowledged the existence of secret CIA prisons abroad. This occurred when, on Sept. 6, 2006, he called for the authority to try prisoners by military commissions. Indeed, there is a network of such CIA prisons outside the country. The CIA’s practice is to interrogate a prisoner in the US, if that is initially convenient, and, if he doesn't cooperate as required, to then threaten him with being sent abroad for torture and if that does not yield results, then to actually send them to a CIA prison abroad for “alternative interrogation techniques” and a longer prison stay. This procedure was followed in the case of Mahar Arar, the innocent Canadian computer engineer, who was turned over to the CIA in the US by Canadian authorities based on false information and who was then taken abroad and beaten with battery cables by CIA agents in a CIA prison, but later found to be innocent and released.

Katherine, as far as I can tell from reading the bill - someone correct me if I'm wrong - almost all of the characterizations you make are untrue. The accused to get lawyers, there is provision for reasonable discovery and evidence obtained under torture is specifically excluded.

1. They do get lawyers, but only once they are brought before the Military Commission. Prior to that stage, I see no right to counsel. Section 950h(c).

2. The ban on evidence obtained by torture is a semantic game. The Administration has internally decided that certain interrogation techniques are not "torture" even though they obviously are and have been held to be in the past, including by US tribunals.

3. The section on "discovery" (949j) is not very clear. As I read it, the only right given is the right to subpoena witnesses and documents for trial. The only actual "discovery" is that the prosecution is obligated to turn over exculpatory evidence. That, of course, is a right which depends on the good faith of the prosecutor. As I read it, the accused has no right at all to conduct what we would ordinarily call "discovery" -- that is, to conduct his OWN investigation into the facts using the process of the court.

I don't understand the point about section 948a(1)(ii) "purport[ing] to make determinations of enemy combatant status conclusive."

Nowhere does section 948a(1) say that Courts are not permitted to be involved. There is no claim that an executive branch determination of enemy combatant status excludes a Court finding, on habeas corpus, the opposite. Indeed, I don't see anything interesting about section 948a(1) at all. It is the same as any other provision of law regarding administrative decisionmaking. It is the same, for example, as an environmental law that provides that, e.g., a source of pollution is defined as a source that has been determined to be such by some adminsitrative review. That's not a statement that something is "conclusively" a source of pollution such that the courts couldn't find otherwise. Same here - this law doesn't provide that if a person is determined by a Review Tribunalto be a UEC that the courts couldn't find otherwise.

This is an appalling piece of legislation on so many levels, but I think JB must be mistaken about the applicability of the "dispositive" determination of unlawful enemy combatant status where the alleged UEC is, in fact, a citizen. If I am reading the enrolled version of the bill correctly, there are two elements required for jurisdiction of the military commissions. To be subject to their jurisdiction, one must be both an alien and an unlawful enemy combatant. Because the phrase “for purposes of jurisdiction” limits the extent to which the determination of unlawful enemy combatant status is dispositive, it should have no relevance to the citizen who is not subject to military commission jurisdiction. The erroneous determination that someone is an alien is not dispositive for purposes of jurisdiction of the military commissions, and the citizen still has the ability to bring a habeas writ.

Nowhere does section 948a(1) say that Courts are not permitted to be involved. There is no claim that an executive branch determination of enemy combatant status excludes a Court finding, on habeas corpus, the opposite.

Section 948d(c) expressly provides that a determination of a "Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter."

This means that any person found to be a UEC is per se subject to the jurisdiction of the Military Commission. Under Section 950g, the only judicial review of the Military Commission is through the DC Circuit. Section 950j(b) eliminates habeas corpus review.

I realized I left unspoken an important fact in my previous post. I pointed out that the right to counsel only applied at the Military Commission stage. The significance of this is that the Administration has no obligation to bring a prisoner before a commission. If they don't, the prisoner just has to sit in his cell, without access to any court and without an attorney. Forever.

This is a bad bill, and I certainly do not like the way it purports to strip aliens of their habeas rights. However, it does appear to treat citizens differently.

948d(c) says the determination by the executive branch that a person is an unlawful enemy combatant is "dispositive for purposes of jurisdiction for trial by military commission under this chapter." That does not mean that the determination of UEC status is sufficient for such jurisdiction. The person must still be an alien to be tried by military commission, and the determination of alien status is not dispositive for purposes of jurisdiction for trial by military commission.

So, citizens cannot simply be herded into military commission trials without habeas rights as aliens can.

Why speak of lawyers. The US Navy lawyer who won the supreme court case was just passed over for promotion to commander (meaning he was fired by the Navy) and the civil rights lawyer is on her way to jail. Exactly what quality of representation do you expect to receive. See you in Gitmo!

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